Defining “Middle Ground”

Perhaps you’ve been following the back-and-forth about “middle ground” originally started by Patrick Ross’ article
lambasting Gigi Sohn and PK and now continuing in various blog posts.  In finding a middle ground, we must
first start by defining it broadly.  To me, the middle ground is
a) providing sufficient (monetary) incentives so
that creative material will be created and distributed for the public’s benefit while b)
minimizing damage to innovation, legitimate consumer rights, and other
public interests. In other words, the classic statement of copyright’s
purpose.  People come out differently on how to properly
balance (a) and (b), and the extent to which (a) should come at
the cost of not achieving (b) or vice versa. 

Perhaps you see defining the middle ground as basically worthless –
who wouldn’t like to achieve both goals?  Saying that we agree on
the goal but not on the methods
doesn’t get anyone much closer to compromises that we can generate practical solutions.

Still, I think there are reasons to start by focusing on this broad,
basic sense of “middle ground.” Many question whether active groups and
individuals in this arena actually do seek this balance. They are
accused of not caring about (a) or (b), of using one to trump the other at all costs. When these labels are
deserved, that in itself points out the importance of trying to come
together on this version of “middle ground.” When the accusations are
undeserved, they distract us from that shared purpose.

Consider what Ross seems to say in his article and blog posts. Supporting Grokster and
opposing stronger secondary liability apparently means supporting
“those who enjoy obtaining unauthorized content for free
from P2P networks.” In this way, those supporters are unconcerned with
achieving (a) and thus excluded from the middle ground. Unless one is
an extremist, one must support a strenghtening of secondary liability.

That description is unfair and misleading.  I believe that reversing Grokster will
not effectively achieve (a) and the costs in terms of (b) are
enormous, but I still care about finding a solution that properly achieves (a) and (b).  As Gigi explained in a editorial,
so does she.  If that makes me a crazy extremist, so be it, but I
don’t think it does – I suppose Gigi would say much the same.